Can a Virginia trial court hold off on entering a conviction and dismiss a criminal case later if the defendant fulfills conditions, even without a specific statute authorizing it?

Plain-English summary

Senator Surovell asked whether a Virginia trial court may, with everyone's agreement, take a criminal case where the evidence shows the defendant is guilty, postpone the formal disposition for a period of time, and then dismiss the charge later if the defendant has complied with conditions like restitution, treatment, or community service. He framed the question as needing both the Commonwealth's Attorney's concurrence and the defendant's consent.

The Attorney General said yes. The Supreme Court of Virginia has held that a trial court has "inherent power" to render judgment, and the act of rendering judgment is "the very essence of adjudication." That inherent power extends to deferring disposition. In a series of cases, the Court has confirmed that a judge may defer disposition and continue a case so long as no judgment of conviction has been entered, and that at the end of the deferral period the judge may consider dismissal if the defendant has complied with the prescribed conditions. Moreau v. Fuller (2008) overruled a 1996 AG opinion that had concluded otherwise, and Hernandez (2011) and Starrs (2014) reinforced the inherent-authority framework. The AG took no position on whether deferred disposition is wise in any particular case, and noted that the Virginia Court of Appeals had expressed opposition to using the procedure as a form of judicial clemency.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Deferred disposition is a long-running practice in Virginia criminal courts: rather than enter a conviction immediately, a judge can put the case on a continued docket for months or years while the defendant completes treatment, pays restitution, or stays out of trouble. If the conditions are met, the judge can dismiss the case without entering a conviction. Virginia has several explicit statutory programs that authorize this for specific kinds of cases (drug-possession first offenses, certain domestic-assault matters, and others), but courts have also handled cases of this kind under their inherent authority, without relying on a specific statute.

A 1996 AG opinion concluded that deferred disposition without a specific statutory authorization was not permitted. The Supreme Court of Virginia disagreed. Moreau v. Fuller (2008) expressly overruled that 1996 AG opinion and held that trial courts have inherent power to defer disposition. Hernandez v. Commonwealth (2011) extended the rule to include the authority to dismiss at the end of the deferral period. Starrs v. Commonwealth (2014) summarized and reinforced both holdings, noting that a trial court "upon accepting and entering ... guilty pleas in a written order, still retain[s] the inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction."

The Court of Appeals has shown discomfort with deferred disposition used as a form of judicial clemency, as in White v. Commonwealth (2017). The AG noted that critique without taking a position on it, and added a disclaimer that the opinion does not address whether deferred disposition is advisable in any particular case.

Common questions

Is there a specific Virginia statute authorizing deferred disposition?
Several statutes authorize specific deferred-disposition programs for particular kinds of cases (drug-possession first offenses, certain assault matters, etc.). But the inherent authority recognized in Moreau and confirmed in Hernandez and Starrs lets a trial court defer disposition even without one of those specific statutes, so long as no judgment of conviction has been entered yet.

Who has to agree for a court to defer disposition?
The question Senator Surovell posed assumed agreement of both the Commonwealth's Attorney and the defendant. The AG's opinion is framed that way as well. The case law on whether a court can defer over the prosecutor's objection is more contested; this opinion is about the case where both parties consent.

Can the judge dismiss the case at the end of the period?
Yes. The Supreme Court of Virginia held in Hernandez that the authority to defer disposition includes the authority to consider dismissal at the end of the deferral period if the defendant has complied with the prescribed conditions.

What is the meaning of "no judgment of conviction has been entered"?
The cases turn on this requirement. Once a court has formally entered a final judgment of conviction, the inherent power to defer disposition is gone. The deferral has to happen before that point. The Supreme Court has held that even accepting a guilty plea in a written order does not, by itself, foreclose the inherent authority to withhold a finding of guilt and consider a different outcome.

Why is this opinion important?
It cleaned up a long-running tension. The 1996 AG opinion said deferred disposition required statutory authorization. Moreau in 2008 disagreed and explicitly overruled the 1996 opinion. By 2018, with Hernandez and Starrs on top, the inherent-authority rule was settled, and this opinion confirmed that view.

Does this opinion endorse deferred disposition as good policy?
No. The AG explicitly said he was offering no view on whether deferred disposition is advisable in any particular case, and noted the Court of Appeals' criticism in White.

Citations

• Moreau v. Fuller, 276 Va. 127 (2008) (overruling 1996 AG opinion; inherent authority)
• Hernandez v. Commonwealth, 281 Va. 222 (2011) (authority extends to dismissal)
• Starrs v. Commonwealth, 287 Va. 1 (2014) (reaffirming the framework)
• White v. Commonwealth, 67 Va. App. 599 (2017) (Court of Appeals concerns about deferred disposition)
• 1996 Op. Va. Att'y Gen. 88 (overruled by Moreau)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/17-022-Surovell-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

November 9, 2018

The Honorable Scott A. Surovell
Member, Senate of Virginia
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Senator Surovell:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You ask whether a trial court may, with the concurrence of both the Commonwealth's Attorney
and the defendant, defer disposition and continue a criminal case for a period of time, and then at the end
of that period consider a dismissal of the charge if the defendant has complied with certain prescribed
conditions.

Applicable Law and Discussion

The Supreme Court of Virginia consistently has held that a trial court may defer disposition and
continue a criminal case upon finding that the evidence is sufficient to convict the defendant, so long as it
has not already rendered a judgment of conviction.[1] This is so because "the act of rendering judgment is
within the inherent power of the court and ... the very essence of adjudication and entry of judgment by a
judge involves discretionary power of the court."[2] In accordance with the Court's decision in Hernandez
v. Commonwealth, the authority to defer disposition in a criminal case also includes the authority to
"consider dismissal of the case" at the end of the continuance period, provided the defendant has
"complied with all the prescribed conditions."[3] Accordingly, it is my view that a trial court may, with the
concurrence of both parties, defer disposition and continue a criminal case for a period of time, and then
consider a dismissal of the charge at the end of that period if the defendant has complied with certain
prescribed conditions.

I offer no view herein as to the advisability of a deferred disposition in any particular case, and I
note also that the Court of Appeals has stated its opposition to the use of deferred disposition as an
extension of judicial clemency.[4]

Conclusion
For the foregoing reasons, it is my opinion that a trial court may, with the concurrence of the
Commonwealth's Attorney and the defendant, defer disposition and continue a criminal case for a period
of time, and then consider a dismissal of the charge at the end of that period if the defendant has complied
with certain prescribed conditions.
With kind regards, I am,

Sincerely yours,

Mark R. Herring
Attorney General

[1] See Starrs v. Commonwealth, 287 Va. 1, 8-9, 752 S.E.2d 812, 816-17 (2014) (citing Hernandez v. Commonwealth, 281 Va. 222, 225-26, 707 S.E.2d 273, 275 (2011); Moreau v. Fuller, 276 Va. 127, 138, 661 S.E.2d 841, 847 (2008)). This applies regardless of whether the authority to enter a deferred disposition has been specifically provided for in statute. See Moreau, 276 Va. at 132, 138-39, 661 S.E.2d at 843, 847 (overruling 1996 Op. Va. Att'y Gen. 88).

[2] Moreau, 276 Va. at 139, 661 S.E.2d at 847-48.

[3] See Starrs, 287 Va. at 9, 752 S.E.2d at 817 (construing Hernandez, 281 Va. at 224, 707 S.E.2d at 274); cf. Starrs, 287 Va. at 13, 752 S.E.2d at 819 (noting that the trial court "upon accepting and entering Starrs' guilty pleas in a written order, still retained the inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction").

[4] See, e.g., White v. Commonwealth, 67 Va. App. 599, 613, 798 S.E.2d 818, 825 (2017).